After several attempts at passage in previous legislative sessions, the Maryland General Assembly has passed the Maryland Healthy Working Families Act (HB1 (SB230)) and will send it to the Governor whose own version of a bill on paid sick leave was rejected by the General Assembly. The Governor has publicly stated that the legislature’s bill is bad for business and intends to veto it. The legislative leadership states that it will override his veto. The bill takes effect January 1, 2018 and is only prospective in its application.
The bill requires an employer with more than 14 employees to have a sick and safe leave policy under which an employee earns at least 1 hour of paid sick and safe leave for every 30 hours an employee works. An employer with 14 or fewer employees, based on the average monthly number of employees during the preceding year, must have a sick and safe leave policy that provides an employee with at least 1 hour of unpaid sick and safe leave for every 30 hours an employee works. An employer is not required to allow an employee to earn more than 40 hours of earned sick and safe leave in a year, use more than 64 hours of earned leave in a year, accrue more than 64 hours at any time, or use earned sick and safe leave during the first 106 calendar days worked.
An “employer” includes the State or local governments and a person who acts directly or indirectly in the interest of another employer with an employee. The bill also excludes certain specific classes of employees from eligibility.
Earned sick and safe leave begins to accrue the later of January 1, 2018, or the date that an employee begins employment with the employer. An employer must allow an employee to use earned sick and safe leave:
- to care for or treat the employee’s mental or physical illness, injury, or condition;
- to obtain preventive medical care for the employee or employee’s family member;
- to care for a family member with a mental or physical illness, injury, or condition;
- for maternity or paternity leave; and
- for specified circumstances due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member.
The bill includes processes and conditions, including notice and verification requirements, under which an employee may accrue and use earned leave.
An employer must notify its employees that they are entitled to earned sick and safe leave by providing a specified notice to employees. The Commissioner of Labor and Industry (the “Commissioner”) must create and make available a poster and a model notice that may be used by employers, which includes specified information on earned sick and safe leave and the rights of employees.
As to enforcement of the bill’s provisions, the bill preempts the authority of a local jurisdiction to enact a law on or after January 1, 2017, that regulates sick and safe leave provided by an employer other than the local jurisdiction.
As to further provisions of an enforcement nature:
- An employer must keep relevant records for at least three years, and the Commissioner may inspect an employer’s records regarding earned sick and safe leave. It is presumed that an employer has violated the earned sick and safe leave provisions if the employer fails to either keep records or allow the commissioner to inspect records.
- If an employee believes that an employer has violated a provision of the bill, the employee may file a written complaint with the Commissioner. The Commissioner must investigate the complaint and attempt to resolve the issue informally through mediation within 90 days of the written complaint.
o If the Commissioner is unable to resolve the issue through mediation and determines that an employer has violated a provision of the bill, the Commissioner must issue an order, subject to the hearing and notice requirements of the Administrative Procedure Act. The order must describe the violation and direct the payment of the full monetary value of any unpaid earned sick and safe leave and any actual economic damages. The order may, in the Commissioner’s discretion, direct the payment of an additional amount of up to three times the value of the employee’s hourly wage for each violation and assess a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance with provisions of the bill.
o If an employer does not comply with an order within 30 days of the issuance of the order, the Commissioner may ask the Attorney General to bring an action - either on behalf of the employee (with the employee’s written consent) or to enforce the order for the civil penalty - in the county where the employer is located.
o In addition, within three years of the order, an employee may bring a civil action to enforce the order in the county where the employer is located. If an employee prevails in such an action to enforce an order, the court may award three times the value of the employee’s unpaid earned sick and safe leave, punitive damages in an amount determined by the court, reasonable legal fees, injunctive relief if appropriate, and any other appropriate relief.
- A person may not interfere with the exercise of, or the attempt to exercise, any right given under the bill.
- An employer may not take adverse action or discriminate against the employee because the employee exercised in good faith the rights granted by the bill.
- An employer may not interfere with, restrain, or deny an employee exercising rights provided under the bill or apply a specified absence control policy that could lead to adverse action.
- An employee who mistakenly, but in good faith, alleges a violation under the bill is protected.
- An employee may not, in bad faith, file a complaint with the Commissioner alleging a violation, bring an action, or testify in an action regarding earned sick and safe leave. An employee who violates these provisions is guilty of a misdemeanor and on conviction is subject to a maximum $1,000 fine.
Other laws which may impact sick leave in Maryland are Federal Family and Medical Leave Act of 1993, Maryland Flexible Leave Act, and the Maryland Parental Leave Act.